[2017] KEHC 2799 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 63 OF 2014

JOHN BUNDI KINYUA ……….. ………………..………….APPELLANT

-VERSUS-

REPUBLIC……………….....……….……………............RESPONDENT

(An appeal from the conviction and sentence of the Principal Magistrate’s Court (S. Ngii, R.M.) at Wanguru, Criminal Case No. 483 of 2014 delivered on 10th December, 2014)

JUDGMENT

1. The appellant John Bundi Kinyua was charged with the offence of defilement contrary to Section 8 (2) of the Sexual Offences Act No. 3 of 2006 at the Principal Magistrate’s Court at Wanguru Criminal Case No. 483/2014. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act.

2. The Appellant denied the charges. The prosecution in pursuit of its case line up five witnesses who gave evidence. The Court ruled that the appellant had a case to answer. He gave his defence and called one witness. The appellant was found guilty on the offence of defilement and sentenced to serve a life imprisonment as provided under the law.

3. The appellant was dissatisfied with the conviction and sentence. He filed the following grounds in his petition of appeal:

(i) That the learned magistrate erred in law and facts by not considering that the child did not report to the teacher on 04/08/2014 about the incident that occurred to her nor the teacher called to testify before the Honourable court.

(ii) That the learned magistrate erred in law and facts that there was a grudge between us concerning the shamba and also the matter could not be taken to court if I parted with Ksh.30,000/= they were demanding.

(iii) That the learned magistrate erred in law and facts by not considering the time from work based on our constitution i.e. it took 4 days the matter to be reported to Itangi administration Police camp.

(iv)That the learned magistrate erred in law and facts and his parents who are PW2 and PW3 and the only passerby considering who use this road.

(v) That the learned magistrate considered the complainant plea of getting an S.T.D. disease whereas my wife doesn’t and I was never examined by a medical doctor.

(vi) That the learned magistrate erred in law and facts by ignoring my wife testimony that we had spent the fateful day in our shamba.

He prays that the sentence be quashed and he be set at liberty. This being a first appeal, the Court has a duty to analyse the evidence and come up with its own independent finding but keeping in mind that the trial magistrate had the benefit to see the witnesses testify and leave room for that. This was held in the case of Okeno -v- R. (1972) E.A. 32.

4. Evidence was adduced by the complainant M.W a girl aged eight (8) years and a pupil in class 3, name of school withheld. She testified that on 4th March, 2014 in the morning she went to school but was sent home for school fees of Ksh.430/=. She went home and was given the money by her mother G. W. and went back to school. On the way back to school she met Nyoro. He told her to accompany him into the bushes. While in the bush Nyoro told her to remove her clothes. The complainant complied and removed all the clothes. Nyoro told her to lie down or else he would cut her. The said Nyoro then penetrated her severally. He told her not to tell anyone. The complainant went home and told her mother what happened. He identified Nyoro as the appellant who she knew before as they were from the same village. The complainant testified that it was not the first time to have coitus as she had done it before severally with the appellant. In cross-examination she maintained that she had met with appellant from Monday to Friday. She denied that her father had sworn to punish the appellant over money he owed him.

5. P.W. 2 G.W.W. is the complainant’s mother. She testified that on the material day her child M. came home from school. She asked her why she came home late. She told me she met the appellant who led her to the bush and defiled her. She also reported to me that the appellant had done that on 2 – 3 previous occasions. P.W. 2 reported to the village in charge who told her to go and report to the Police. She reported to Itangi Police Post and was referred to Wanguru Police Station. She was referred to hospital and went to Kimbimbi sub-district hospital. She was treated and was later issued a P.3 form which was filled by Doctor Keneth Munyi P.W. 4. P.W. 2 identified the note referring the complainant to hospital, treatment notes and P.3 form MF1 – 1 and 2. She also identified a clinic card showing that the complainant was born on 20th June, 2006, MF1 – 3.

6. P.W.3 – E.W.G. testified that he is the complainant’s father. He testified that the complainant informed him that she was defiled by the appellant who she met on her way from school. He called the assistant chief and also reported to the Police. He then took the complainant to hospital. He was given a note to take to the Itangi Police Post so that the appellant could be arrested. He told the Court that the appellant is called Bundi but he is also known as Nyoro.

7. P.W. 4 is Doctor Keneth Munyi a doctor at Kimbimbi sub-county hospital. He testified that on 7th august, 2014 he filled the P.3 form of the complainant. He testified that she was aged eight (8) years. The allegation was that she was defiled by a person well known to her. On examination she had no injuries on her body. On the female genitalia she had no injuries. There was white discharge which presented a urinary tract infection which was certified by lab tests. High vaginal swab had pus cells contaminated with human spermatozoa. He filled the P.3 form exhibit 2 and produced the outpatient record and lab requests as exhibit 2.

8. P.W. 5 was Peter Njathi a Police Constable (P.C.) who investigated the case. He testified that on 4th August, 2014 the complainant was taken to the Police Station by her parents on allegation that she was defiled by the appellant in this case. She was referred to hospital and a P.3 form was filled. He got a clinic card showing that the complainant was eight (8) years old; exhibit 3. The appellant was arrested and charged.

9. The appellant gave unsworn defence and gave his name as John Bundi Kinyua. He stated that on the material day he spent the whole day in his rice farm. Himself, his wife and child went to the complainant’s mother to discuss the issue when they heard rumours. They demanded Kahs.30,000/= and when he failed to raise it he was sued. He further stated that the dispute revolves around use of farms and lease agreements that were never honoured.

10. D.W. 2 P W G they went to the complainant’s home as her parents were spreading rumours. The parents said the rumours were true. She told the Court that on 4th August, 2014 she spent the whole day with the appellant.

11. This was the prosecution and defence evidence presented before the trial magistrate. I am of the view the evidence was overwhelming. There was sufficient reasons for the trial magistrate to enter a conviction against the appellant. The complainant knew the appellant before, a fact which is not in dispute. The offence was committed in broad daylight and elucidates any possibility of mistake. The evidence of the complainant was corroborated by the medical evidence as there was presence of spermatozoa. The appellant when he cross-examined the complainant alleged that the complainant’s father had vowed to punish him over a debt. However, when the complainant’s father i.e., P.W.3, testified, it was not put to him that he had vowed to punish the appellant. The appellant and his witness P.W.1 told the Court that they heard rumours and went to the home of complainant. This shows that if the rumours were about this offence, there was no other suspect. The appellant stated that 30,000/= was demanded. This was not put to P.W. 2 and 3 the parents of the complainant when they were cross-examined. It shows that the allegation is a made up story. In any case D.W. 2 did not confirm in her testimony that the money was demanded. It shows the appellant was not truthful. The appellant also alleged that the dispute revolved around land which was never put to P.W. 2 an 3. The appellant could not have been telling the truth. The prosecution proved that the complainant was aged eight years with the production of the clinic card exhibit 3. My finding is that based on the evidence before the trial magistrate, the conviction was proper.

12. The appellant in his first ground of appeal faults the complainant for not reporting to her teacher and her teacher not being called as a witness. The testimony of the complainant is that after the defilement she went home and met her mother. Upon being asked where she was she reported to the mother what had happened. Failure to call a teacher or a staff of the school as submitted by the State was not fatal. The appellant did not dispute that the complainant had been sent home for school fees. It is an afterthought. The authorities cited Bukenya -V- Uganda 1967 EACA and Juma Ngondia -V- Republic do not assist the appellant as the facts herein are distinguishable from the facts of this case. Sufficient evidence was adduced to prove the fact that complainant had been sent home for school fees and this is a fact which appellant did not dispute at the trial. This was a case of sexual offence where the Court can rely on the evidence of the complainant to convict. The witness who was not called was not a material witness. The Court of Appeal dealt with this issue in the case of Erick Onyango Ondeng -V- R 2014 eKLR. It was held:

“In BUKENYA & OTHERS VS UGANDA (supra), the former Easter Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case;…….

While fully in agreement with the above statement, it should be remembered that the context in which it was made is that of a case in which the evidence called is barely adequate. In the present case, the proviso to section 124 of the Evidence Act and the medical evidence must be borne in mind as well as section 143 of the Evidence Act (cap 80) which provides that, in the absence of any requirement by provision of law, no particular number of witnesses shall be required for the proof of any fact. In this appeal, it is not clear to use what value the evidence of violet would have added to the evidence of PW2, which the court found trustworthy, as well as the medical evidence. In our opinion, Violet would have been a peripheral witness as she was said to merely have happened to pass by when the appellant was with PW2 on a different occasion.

The proviso to Section 124 of the Evidence Act therefore allows the court to convict on the sole evidence of a victim of a sexual offence if it is satisfied that the victim is being truthful. Accordingly, the prosecution need not call all witnesses who may have information on a fact. Failure to call a witness will only be fatal if the evidence presented by the prosecution is insufficient to sustain a conviction and contains gaps which could have been filled by a witness who was not availed.

In this case, though the class teacher was not called, the evidence of the complainant was consistence that it was the appellant who had defiled her. Her medical evidence also proved that she had been defiled.

13. The appellant faults the trial Court for relying on evidence which had contradictions. The appellant submits that the complainant stated that the date was 4th March, 2014 while P.W.2 stated it was on 4th August, 2014. The typed proceedings indicate 4th march, 2014 while the handwritten proceedings indicate 4th August, 2014. It is clear that there were no contradictions as it was clearly a typing error. The time the complainant came from school at about 4. 00 p.m. while P.W.3 states it was at 6. 00 p.m. This was a minor contradiction. The complainant stated that it was about 4. 00 p.m. This means it was any time between 4. 00 and 6. 00 p.m. as she was not exact. In the case of Erick Onyango Ondeng’ (supra). The Court of Appeal held:

“Nor do we think much turns on the alleged contradictions on the time of commission of the offence. The trial court, after hearing all the evidence accepted that the offence was committed at “abut 7 pm” in accordance with the evidence of PW2. As noted by the Uganda Court of Appeal in TWEHANGANE ALFRED VS UGANDA, Crim. App. No 139 of 2001, [2001, [2003] UGCA, 6 it is not very contradiction that warrants rejection of evidence. As the court put it:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

These were minor contradictions and typographical errors which are excusable and do not in any way cast aspersions on the prosecution case. They do not affect the key substance of the prosecution case. Section 382 of the Criminal Procedure Code provides:

“Subject to the provisions herein before contained, no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this code, unless the error, omission or irregularity has occasioned a failure of justice.”

The proceedings i.e. the handwritten show that the complainant gave a date of 4th August, 2014. The error when typing the evidence of the complainant with regard to date of offence has not in any way occasioned a miscarriage of justice.

14. The appellant states that the age of the complainant was not proved by a birth certificate. I hold the view it is not only a birth certificate that can prove age. A parent giving date of birth, a baptism card or even age assessment by a doctor, birth notification and so on are all reliable means to prove the age of a child. In this case the prosecution relied on the clinic card which was produced as exhibit 3 by the prosecution and proves that the complainant was born on 20th June, 2006. At the time this offence was committed on 4th August, 2014 she was eight (8) years and one month or so old. The ground is without basis. In the case of Fred Omar Omondo -V- Republic (2014) eKLR.

Section 8 (1) and (2) of the Sexual Offences Act provides:

“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”

Proof of age is crucial as it determines the sentence to be imposed. The trial magistrate considered the age of the minor and had this to say;

“In the case of Kaingu Elias Kasomo -vs- R (Malindi Criminal Appeal No. 504 of 2010) the Court of Appeal reiterated the burden of the prosecution to prove the age of the victim in defilement cases where the victim is alleged to be a child beyond reasonable doubt in the following terms;

“In its wisdom, parliament chose to categorize the gravity of that offence on the basis of the age of the victim and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt.”

In the present case, the victim Maureen Waithera Waweru told the court that she is 8 years old. Her mother prosecution witness 2 told the court as much. In evidence the prosecution produced a child health card according to which the complainant was born on 20th June, 2006. The child health card contains a prima facie evidence on the complainant’s date of birth and this court finds that the prosecution did prove beyond reasonable doubt that the complainant was born on 10th June, 2006 and I so find.

Going by this date, it means that as at 4th August, 2014, the complainant was exactly 8 years, one (1) month and 14 days old. In those premises, since the complainant had not celebrated her 11th birthday, it suffices for the purposes of section 8(2) of the Sexual Offences Act to hold that the prosecution did prove beyond reasonable doubt that the complainant was aged 8 years as at 4th August, 2014 which age is below the age of 11 years and I so find”.

I find no reason to fault the trial magistrate on the issue of age of the minor. The age of the minor was proved. She was within the age bracket covered under the above section. The charge sheet which was amended on 16th September, 2014 was read to the appellant. The statement of offence was clearly laid down and proper particulars disclosed to enable the appellant understand the nature of the offence charged. The submission by the appellant that the trial magistrate erred by failing to consider that the age of the complainant was not proved is a sham. The prosecution discharged the burden to prove the age of the complainant beyond any reasonable doubts. The trial magistrate properly addressed her mind on the issue. It is far-fetched for the appellant to say at paragraph 4 reply to the submission by the state to say that the State agreed that age was not proved as this is far from the truth. The submission by the State was that age was proved which I find is the case.

15. The appellant in his submissions faults the trial Court for relying on the evidence of a single witness. The trial Court had an opportunity to assess the witness and her demeanor and found her evidence to be credible. The appellate court has no reason to interfere or doubt the trial court’s evaluation.

Section 124 of Evidence Act Cap. 80 states:

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth”.

In Benjamin Mbugua Gitau v Republic [2011] eKLR the Court Appeal in dismissing the appeal stated;

“The learned Judge also dismissed the appellant’s contention that there was no corroboration of the complainant’s evidence stating that corroboration was not a requirement of the law as it was removed by the proviso to section 124 of the Evidence Act, and even if there was such requirement, it was declared unconstitutional in the case of Mukungu v R Cr. App. No. 277/02, as it would be discriminatory of women and girls…………

The central and crucial part of the prosecution case was the complainant’s evidence that she knew the appellant who was from the same village and that he did penetrate her genital organ with his…………This Court has stated severally that there is no particular number of witnesses who are required for proof of any fact unless the law so requires – see section 143 Evidence Act”.

The complainant was the only witness to the fact of defilement. This is what the trial magistrate had to say:

“In the present case, the complainant told the court in unequivocal terms that when the accused lay on her he inserted the thing which is used to urinate into her organ which she uses to urinate. The court understood and indeed no other meaning can be assigned to this statement in the context of this case, that the accused inserted his penis into the complainant’s vagina.

The veracity of this evidence cannot be doubted. I observed the demeanor of the complainant as she testified both in chief and cross-examination and I could see that the words that came out of her moth were deep seated in her heart and were a true reflection of what transpired between herself and the accused on the material date. She was consistent on every aspect of the charge herein, and demonstrated a high level of independence of mind on the issues she spoke to. I believed her testimony as truthful.”

The trial Court believed the complainant. She had that special opportunity which this Court does not have and her finding cannot be faulted. As already pointed out the fact of defilement was corroborated by medical evidence adduced by P.W. 4. Cases of defilement as submitted by the State are committed in privacy. It is not expected that the offence would be committed by the road side for witnesses to see. It is safe to convict if the court gives reason to believe the complainant and there is corroboration by medical evidence. The authority cited is distinguishable from the facts of this case. The authority of Benjamin (supra) is relevant and clearly addressed the issue at hand in this matter. It is proper to rely on the evidence of a single witness to convict based on the peculiar circumstances of the case.

16. The appellant raised the issue of the burden of proof. It is trite law that the burden of proof in criminal cases never shifts. I find that the prosecution discharged the burden of proof. The Court of appeal in the case of Stephene Nguli Mulili -v- Republic (2014) eKLR stated:

“On the issue of whether the prosecution discharged its burden of proof, it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case……………

In reference to this Lord Denning in MILLER V MINISTRY OF PENSIONS [1947] 2 ALL ER 372 stated:

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

In my view there can be no doubt in this case that the prosecution has discharged its burden of proof.

17. The appellant faults the prosecution for doing shoddy investigations. However, the prosecution called the investigating officer, P.W.5, who testified that he was assigned duties to investigate this matter which had been reported on 4th August, 2014. He investigated. The appellant was arrested and charged. The investigations led to arrest, charge and prosecution which resulted in a conviction. The matters raised by the appellant in his submissions were not put to the investigations officer when he was cross-examined. The inference is that he was satisfied with what the investigations officer did and his allegations made at this stage are an afterthought. The authorities cited cannot aid him in any way.

18. The appellant further submits that the trial magistrate erred by failing to consider that there existed a grudge between him and the parents of P.W. 1. The trial magistrate considered the allegation and stated as follows;

“The court notes, that while cross-examining the complainant, the accused alluded to an existing grudge between himself and the complainant’s father, but surprisingly when the complainant’s father prosecution witness 3, took to the stand, the accused did not ask him any question suggestive of a grudge between the two.

Nevertheless, existence of grudge, if true cannot per se, exonerate an accused person of criminal liability more particularly in the present case where the evidence adduced by the complainant shows beyond any reasonable doubt that the accused defiled the complainant on 4th August, 2014 as charged.”

The appellant never cross-examined the father of the complainant on the issue of a grudge. He chose to use the issue as a ‘secret weapon’ in his defence and in this appeal. The reasonable conclusion is that the allegation of a grudge is a sham, an afterthought and without basis. The trial magistrate acted properly in disregarding the allegation.

19. The appellant further submits that the trial magistrate did not consider his defence of alibi. I find that she considered the defence when she found that the appellant was placed at the scene of crime by the complainant who knew him very well before the incident. In any case the defence of alibi was adduced at the defence stage. Though the accused by raising this defence did not assume any burden to prove it, the Court may reject it for failure to give the prosecution time to rebut the defence. The defence was without merits. The Complainant testified that the offence was committed at around 4. 00 p.m. If indeed he had worked in the farm the whole day, there are chances that he was heading home when he met the complainant. In the case of Karanja -v- Republic (1983) KLR it was stated:

“The appellant’s story did not amount to an alibi as it was mentioned in passing when giving evidence and furthermore, it was not raised at the earliest convenience i.e. when he was initially charged. In a proper case, the court may in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact he had not put forward his defence of his alibi at an early stage in the case so that it can be tested by those responsible for investigation and prevent any suggestion that the defence was an afterthought.”

From the evidence of the complainant, it is clear that she met the appellant on the material day. She knew him before. The appellant acted as rumours were implicating him and went to the complainant’s home. He never denied the rumours. They demanded Kshs.30,000/= may be to settle the matter. The wife D.W. 2 stated that the parents informed her that the offence was committed on 4th August, 2014. D.W. 2 was the Appellant’s wife and not an independent witness. I find that the defence of alibi was an afterthought which the trial Court properly rejected and found that it had been proved beyond any reasonable doubts that the appellant defiled the complainant at the material time and date. The defence of alibi was a sham. This ground must fail. The case of Ondongo -v- Republic is not relevant nor is the case of Ajwang -v- Republic.

20. The appellant raised the issue that there was a delay of six months before the complainant reported. This is not a serious argument. As I have pointed out, the date of 4th March, 2014 in the typed proceedings is a typing error. The charge sheet and evidence of all the prosecution witnesses are in agreement that the offence was committed on 4th August, 2014. The report was made on 5th August, 2014. The complainant was treated on 5th August, 2014 and P.3 form filled on 7th August, 2014. The appellant gave his defence based on the date of 4th August, 2014 and even his wife D.W. 1 testified that the parents of the complainant said the offence was committed on 4th August, 2014. The appellant is taking advantage of a typing error to make a mountain out of a mole hill, he cannot go far with this. I reject the ground.

In conclusion I find the prosecution did prove the charge against the appellant beyond any reasonable doubts. The appeal must fail. I dismiss it.

Dated and delivered at Kerugoya this 5th day of October, 2017.

L. W. GITARI

JUDGE

Read out in open court, Mr. Sitati, State Counsel for the State, Appellant present, court assistant Naomi Murage, this 5th day of October, 2017.

L. W. GITARI

JUDGE

5. 10. 2017